In the aftermath of massive human rights misuses, victims have well-established rights to see the culprits penalized, to know the truth, and to receive reparations. Because systemic human rights transgressions touch not just the direct victims, but the entire society, states have obligations to guarantee that the defilements will not reoccur, and thus, a distinctive duty to reform institutions that were either involved in or incapable of averting the mistreatments. Academic scholars and activists cited that the core elements of a comprehensive Transitional Justice (“TJ”) strategy include criminal prosecutions and trials, principally those that address perpetrators considered to be the most accountable. Compensations (repressions), through which governments identify and take steps to address the injuries suffered. Such initiatives often have substantial components, as health services/cash payments as well as emblematic features, as public apologies or memorialization (day of remembrance). Furthermore, institutional reform of offensive state institutions such as the military, police enforcements, and judicial bodies (courts), to dismantle appropriately the operational machinery of manipulations and preclude reappearance of grave human rights abuses and impunity along with the Truth Commissions or other techniques to investigate and report on systematic patterns of exploitation, recommend changes and reforms in that field.

It should be noted that footsteps that must be taken in TJ should comprise peace process; renovation of institutions that are favorable to a stable and fair political system, including governance and judicial configurations; the procurement of the economic means required to achieve those ends, as economic stability is instrumental for political constancy, and the reinstatement of civil confidence (trust) in government’s institutions, means that the state works for all citizens irrespective of race, gender, nationality, religion, or political allegiance. Legally speaking, it is a combination of International Humanitarian Law (“IHL”), International Human Rights Law (“IHRL”), along with the due process principles in criminal prosecutions. This process proposed justice in all its forms, includes restorative justice, criminal justice, redistributive and social justices. This article will discuss TJ roots in religious perspectives generally in section two and if it is compatible with the recent positive international norms along with the TJ model in Islamic law in part three, highlighting Egypt as a case study regarding the death penalty as a tool of TJ. Finally it concludes that the axiomatic view of Islamic TJ policies is in essence fashioned by religious theories, laws, and divine practices and that Islam is more than appropriate to create a comprehensive design for victims’ care in transitional periods on both national and universal levels. This is a message that everyone can and must understand.

This essay is a commentary on an article submitted by Professor Lama Abu-Odeh as part of a special symposium edition contained in Volume 10 of the Santa Clara Journal of International Law. In her piece, Professor Abu-Odeh builds on her earlier work respecting Islamic law but adds a new target to her sites, that of the study of national security. That is, we already knew Professor Abu-Odeh’s view of the typical Islamic law scholar. He is one who is focused either on the resurrection of the shari’a in some sort of reconstructed form or involved in a thoroughly misguided search for the truly “Islamic” in our contemporary, messy, hybrid and multipolar world, often disappointed when he cannot find it. In this work, Professor Abu-Odeh informs us that the national security scholar is guilty of something of the same, by ignoring “Muslims as agents of modern history” in considering what national security is supposed to be about.

I can only applaud Professor Abu-Odeh’s focus on the notion of Muslims as agents of their own history. Like her, I find much that is wrong with what passes for national security discussions in our times. My concerns relate to the specific prescription she employs to deal with the problems of national security she outlines above. These relate to the establishment of a single Arab state that is the home of all the Arab peoples. I wonder whether, in advocating such a solution, a contradiction in her work might well be unearthed. It is one thing, after all, to call for changes in regimes or in economic governance in states which seem to have broadly disaffected citizens. It is quite another to call for an obliteration of those states entirely and a return to promises of an ethnically defined nation made by the United Kingdom nearly a century ago. Might we accuse Professor Abu-Odeh, that is, of doing vis-a-vis the Arab what she has deftly and with much justification decried in the study of the Islamic? Is she searching for the genuinely Arab as a “pearl in the shell”? Is she taking account of Arabs as agents of their own history, a history which has developed to no small extent since the end of the First World War, when the dream of the Arab state was thwarted?

Is the resurrection of a single Arab state therefore almost as anachronistic an exercise as attempting the resurrection of Islamic law “in this or that field”? These questions are worth exploring, and this essay endeavors to address them.

By shedding light on an under-examined system of law, this article makes a necessary contribution to the beginning of a fruitful study in the west of Islamic law. Although the recent literature has paid increasing attention to the problems of the elderly and their rights, so far few authors have treated this issue in the context of Islamic law. Scholarly treatment of this issue is therefore urgent, all the more so considering that Islamic law represents a source of law affecting over one billion people living in the world’s 49 majority-Muslim nations.

Therefore, this article brings balance to the global study of elder law by examining elder issues in the ArabMiddle East, where Islamic law remains influential to varying degrees. As the global population ages, elder law issues are of increasing salience. Although these issues are receiving a commensurately increasing level of attention in the academic literature, certain regions of the world have been neglected, including the ArabMiddle East.

This article begins with a succinct backdrop of Islamic law and its development through centuries of Muslim jurisprudence, with focus on those sources of Islamic law which have implications for modern elder rights law. It then turns to a survey of elder law in the Arab Middle East today, finding that the legal systems of modern Arab states have failed to embrace the lofty standards for elder rights found in traditional Islamic law and jurisprudence.

Despite this highly moral and comprehensive Islamic legal system, the elderly are not fully protected under domestic employment, labor, and social security laws or in the implementation of international human rights law. Moreover, awareness needs to be spread in the Arab Middle East on the difficulties of the elderly and how to face them. This is due to lack of specialized laws regulating the rights of the elderly in most ArabMiddle Eastern countries. Accordingly, an Islamic model cannot be secured unless we establish a powerful and large state, strong in its economy, social institutions, education, etc.; i.e. a nation that produces enough to let its citizens enjoy decent life.

Finally, the Arab Spring Revolutions have given rise to much legal and political chaos. This chaos could be partially alleviated by reforming laws in various sectors to bolster the societies in Arab countries, and the care of the elderly is a sector ripe for reform. The authors hope this article will be an important first step in the development of a western scholarly examination of Islamic law and jurisprudence on elder law and other vital issues.

The Arab Spring has seen the fall of dictators in Tunisia, Yemen, Libya, and Egypt as well as serious protests and uprisings in other countries across the Arab world. While each movement is based upon different factors, two persistent strains can be heard within each: a demand for economic justice and a call for a return to Islam. Amongst the diverse population that comprises Egypt, calls for the former have been undeniably unified while calls for the latter have been varied and fragmented.

Notwithstanding religious elements, Islamic law has something important to say about economic justice. However, former Egyptian president Hosni Mubarak worked hard to suppress Islamist voices and discouraged any form of Islamic law during his rule. Mubarak succeeded until February 11, 2011, when he officially resigned after massive protests. Thereafter, Egyptians elected to the presidency the Muslim Brotherhood-backed candidate Mohamed Morsi. Now, the world is pondering to what extent Islamic law will be implemented in Egypt post-Revolution. Specifically, the legal world is wondering what, if anything, Islamic banking law will have to say about economic justice in Egypt.

Upon initial post-Revolution parliamentary elections, Muslim Brotherhood political leaders drafted a bill that sought to increase the market share of Islamic banks within the current, secular legal framework. However, the bill would likely not achieve its purpose due to complications of competition with conventional banks in a dual-banking regime. Thus, Egypt’s next parliament should adopt strict Islamic banking and finance law, thereby forbidding conventional banking in Egypt.

Although an overhaul of the secular banking law regime in Egypt would be complex, harsh, and perhaps injurious in some respects, the future benefits of adopting strict Islamic banking law outweigh those challenges. Specifically, a wholly Islamic banking sector will allow Egypt to cultivate and make use of its excellent source of human capital while promoting fairness in monetary dealings and appeasing those who seek a return to the religious and cultural roots of Islam.

There is a rising interest in our academy in the study of constitutional states, particularly in the Islamic world, whose legal and constitutional structure is at least as a formal matter both founded on and subject to religious doctrine. For those of us interested in the Arab spring, and indeed in constitutionalism in much of the Islamic world, this work is not only valuable, but positively vital. Without it, we are unable to discuss most emerging Arab democracies in constitutional terms. In Iraq, and in Egypt after it, two of the premier Arabstates which have recently seen constitutions approved through popular referendum, Islam is described as state religion, as source of legislation and as constraint upon law as well. Nobody reasonably aware of the region imagines that Libya and Syria (were the latter to develop into a democratic state) would reach a different conclusion respecting the role of Islam in the public order. While the details may well differ from one state to another, the principle of “constitutional theocracy” holds fast throughout much of the Arabworld. The effect of this on religious minorities that are not Muslim is the subject of this essay, with particular reference to the one Arab state with which I am most familiar, that of Iraq.

In assessing how rising constitutional theocracies like Iraq happen to balance the priorities they afford Islam in foundational text with religious freedom, a value also invariably enshrined in the constitutions of emerging democracies in the Middle East, it is important to note that the going opinion is very much in favor of some form of protection for and tolerance of non-Muslim minorities. It is also important to note that in assessing any conflicts with shari’a, there is a great deal of nuance, indeed near incoherence, in understanding not only the precise impact which that body of rules is supposed to have as a legal matter in the modern constitutional theocratic state, but also what the rules of the shari’a are and how much reinterpretation of the historic content of the shari’a will be tolerated.

Where traditional rules of the shari’a have been all but abandoned by modern nation-states, particularly inasmuch as political equality as between Muslim and non-Muslim is concerned, it has been easier for the judiciary to advance notions of religious freedom and, perhaps more saliently, equality of citizens irrespective of religion. Indeed, Iraqi courts and legislators not only permit non-Muslim participation in legal and political affairs, but advance programs to ensure adequate non-Muslim representation in the legislature.

However, in contradistinction to political freedoms afforded to non-Muslim minorities, courts are more cautious when it comes to recognizing vital elements of religious freedom and religious equality if to do so would frontally challenge traditional understandings of shari’a where such understandings remain relevant in modernity. Hence, Iraqi courts outside of the autonomous region of Kurdistan have been remarkably unsympathetic to individuals who wish to convert from Islam to another religion, even when they were not born Muslim and even when their original conversion to Islam was involuntarily forced upon them by one of their parents, often over the objection of the other parent.

This paper will explore this unusual dichotomy, and further explore how courts in the Kurdistan region have managed to come to different results, in a manner altogether more promising for supporters of religious freedom.